In NSW, ‘section 10’s’ are sometimes seen as a ‘second chance’ for people who are generally law-abiding citizens that ‘slip-up’ by committing relatively minor criminal offences.
Getting a section 10 can help to avoid the potentially career-ending consequences of receiving a criminal record or, in driving cases, a debilitating licence disqualification.
What is a section 10 in NSW?
If you are guilty of a criminal offence in NSW, you will normally receive a conviction on your criminal record.
There are thousands of criminal offences in NSW, the most common of which include drink driving, drug possession and common assault.
There is only one way to avoid a conviction if you plead guilty or are found guilty in court of a criminal offence in NSW, and that is by getting what’s known as a section 10 – which derives its name from section 10 of the Crimes (Sentencing Procedure) Act 1999.
Under that section, the court may dismiss the charge – meaning that you will not get a criminal conviction, fine or, in driving cases, licence disqualification.
It is possible, however, for a good behaviour bond to be attached to your section 10, which can last for up to two years and will require you not to commit any further offences within that period.
Generally, the less serious the offence, the more likely it is that you will get a section 10.
However, you should not assume that you will get a section 10 just because it’s your first offence. For example, over half of all low-range drink drivers receive a criminal conviction, as do many people who are guilty of common assault and drug possession.
On the other end of the scale, it is certainly possible to get a section 10 for serious offences such as drug supply and ‘assault occasioning actual bodily harm’, although it is generally harder to do so.
The court will look at a whole range of factors when deciding whether to grant a section 10; including the nature of the offence, the personal characteristics of the offender, any ‘extenuating’ circumstances and the impact of any conviction or licence disqualification.
Do I have to plead guilty to be eligible for a section 10?
It is a myth that you must plead guilty in order to qualify for a section 10.
Indeed, you may be able to receive a section 10 even if you plead ‘not guilty’ and end up losing your defended hearing – although it is generally harder to do so in those circumstances.
The reason it is harder is twofold: firstly, fighting the charges disentitles you to a ‘sentencing discount’ for a guilty plea; and secondly, it indicates an absence of remorse. Both of those factors can work against you when trying to persuade a magistrate or judge to grant you a section 10.
Can I get more than one section 10?
Another myth is that you can’t get a section 10 twice.
It is certainly possible to get a section 10 more than once; but you (or your lawyer) will need to submit very good reasons why you should be given yet another chance.
There is one exception to the rule (that you can get more than one section 10). That exception is contained in section 203 of the Road Transport Act 2013, which says that you are not entitled to a section 10 if you already got a section 10 for an ‘applicable offence’ in the previous five years.
‘Applicable offences’ are:
- Drink driving;
- Menacing driving;
- Failing to stop and assist after motor vehicle impact causing injury, death or grievous bodily harm;
- Failure to submit to a test or analysis or assessment (for drugs or alcohol);
- Wilful alteration of concentration or amount of alcohol or other drugs;
- Negligent driving; and
- Driving recklessly or in a matter/at a speed dangerous
This means, for example, that you are not able to get a section 10 for drink driving if you received a section 10 for ANY of the above offences within the previous five years.
Can I get a section 10 if I have a criminal record?
You are eligible for a section 10 in all other cases; including where you have previous convictions.
This means, for example, that if you received a conviction for any ‘applicable offence’ (eg drink driving) at anytime (including within the past five years), you are still eligible for a section 10.
In fact, you are eligible for a section 10 even if you have several previous convictions – although it will, of course, be harder to persuade a court not to record a conviction against you if you already have one, or more.
If you are facing charges and want to know more about your chances of getting a section 10, speak to an experienced criminal lawyer as soon as possible.
If you are charged with a driving offence, you may wish to look through the lawyer’s recent traffic law results to get an idea of the outcomes that they achieve in various situations.